in the record making such an inquiry necessary.

There was no error in the proceedings, and the judgment will be a firmed.

LOUISIANA SUPREME COURT.

Denis CLEMENTS et al.

v.

October, 1890, by an electric current from the wires of the defendant company, while engaged

LOUISIANA ELECTRIC LIGHT CO., Appt. in repairing the gallery roof at the corner of Gra

*1. The violation of a duty specified by law is negligence; therefore, when a city ordinance under which an electric lighting company is operated requires it to have the "splices" on its wires perfectly insulated, the failure to do so is negligence.

fect, he comes in contact with the wire, and is

responsible.

vier and Camp streets, in the city of New Orleans. The plaintiffs, the father and mother of the deceased, sue the defendant company for damages for the death of their son. There was judgment for the plaintiffs for $5,000, and the defendant appealed.

Joseph Clements was a tinsmith by occupation. He had been employed to go on the roof of the gallery to repair the same by a con2. A person whose occupation brings tractor. He was accompanied by another him in proximity to the company's young man, Alfred Anderson. In half an wires has a right to believe that the wires have hour after they went on the roof Clements was been insulated and the ordinance complied with. killed by coming in contact with defendant's He is required to look for patent defects in wires. Two of defendant's wires run up and the insulation only. If, not aware of a latent de-down Camp street, over the roof of this galinjured without fault on his part, the company is lery. They were 2 feet 4 inches above it. They were some 17 inches distant from each other, and the inside wire was about 4 feet from the Camp street edge of the gallery. The wires were fastened to a support or "horse" on the gallery, and the inside wire, to prevent "horse" by a piece of telephone wire. Beits contact with other wires, was secured to the tween the "horse" and the Gravier street side of the gallery there was, on the inside wire, a joint covered with insulating tape. To all appearances it was in good condition, but had been worn by the exposure to the weather, and had evidently lost some of its insulating properties. The defects, however, were not vis

3. When the action of both parties must have concurred to produce the injury, it devolves upon the plaintiff to show that he was not himself guilty of negligence.

4. This proof need not be direct, but may

be inferred from the circumstances of the case.

5. Where an electric wire is stretched over a roof, and a party goes on the roof to repair it, and the wire is of that height above the roof that the chances are that he will come in contact with it by going under it, or stepping over it, it is not negligence to pursue either mode of crossing, if he exercises all necessary and prudent care to protect himself, in propor-ible, but were exhibited during a storm, as tion to the danger.

6. When a person is employed in the presence of a known danger, to constitute contributory negligence it must be shown that the plaintiff voluntarily and unnecessarily exposed himself to the danger.

shown by the testimony of S. W. Bennett. From his testimony, it is shown that the insulating tape had been defective for a considerable time. He occupied a room fronting on the roof, and forbade his employés from going on it, on account of the want of proper and safe insulation over the wires. Clements and his companion were engaged in cleaning the roof, the first in sweeping and the other in carrying off the dirt. The fatal injury to young Clements was rapid in its results; so quick in execution that no witness, not even the witness who was on the roof with him, was able to state with precision his position when he received the shock from the wire. But we think, from all the attendant circumstances, that he was either stepping over the wire or going under it. It is probable that he came in contact with both wires, making a short circuit, increasing the energy of the electric force. The unprotected or uninsulated places which were not visible on the splice in the wire came in contact with his body under the right shoulder blade. The wires were so close to the roof that, to pass from where Clements was first seen sweeping, to the gutter, he must either

The rule that violation of a legal duty is negligence seems manifestly just when applied to the case of such dangerous agencies as electricity, even if there should be any question about it in

more trivial matters.

See also 18 L. R. A. 479; 22 L. R. A. 759; 25 L. R. A. 552; 26 L. R. A. 101; 28 L. R. A. 596; 45 L. R. A. 267 ; 46 L. R. A. 745.

have stepped over or crawled under. From the distance of the wire above the roof, to step over would in all probability have brought Clements' body in contact with one or both wires. He was only of medium height, and to step two feet four inches would require not only exertion, but some skill, to keep clear of touching the wires. It is in evidence that about the time the accident occurred there was considerable leakage on defendant's line of wires, and this is urged as evidence of neglect on the part of defendant, because it showed defective insulation. But the general defect along the defendant's line cannot be evidence of want of due diligence and care. It must be shown that the accident was occasioned by some defect at the point where the injury was inflicted Nivette v. New Orleans & L. S. R. Co. 42 La. Ann. 1153.

proximity to them. In this respect, and in this particular case, we are of the opinion that the defendant's negligence caused the death of Clements.

But not withstanding this fault of defendant, if the evidence shows that the plaintiff himself was guilty of negligence contributing to the injury, he cannot recover. The question is whether the act of the party injured had a natural tendency to expose him directly to the danger which resulted in the injury complained of. If the plaintiff could, by the exercise of reasonable care, at or just before the happening of the injury to him, have avoided the same, he cannot recover damages for the injury. When the action of both parties must have concurred to produce the injury, it devolves upon the plaintiff to show that he was not himself guilty of negligence. He must show affirmatively that he was in the exercise of due and reasonable care when the injury happened. Deikman v. Morgan's L. & T. R. & S. S. Co. 40 La. Ann. 787; Kepperly v. Ramsden, 83 Ill. 354: Beers v. Housatonic R. Co. 19 Conn. 566; Hale v. Smith, 78 N. Y. 480; Murphy v. Deane, 101 Mass. 455, 3 Am. Rep. 390. This proof need not be direct, but may be inferred from the circumstances of the

Mayo v. Boston & M. R. Co. 104 Mass. 137; Myhan v. Electric Light & P. Co. 41 La. Ann. 964; 2 Thomp. Neg. 1178.

We are aware of the difficulty which confronts the defendant company in keeping its many wires, passing over a large territory, to great distances, in a condition of perfect insulation. Parts of the line will necessarily be come uncovered, and all that can be expected is that the company will inspect its lines, and repair defects as early as practicable. The particular defect in insulation in this case which is complained of was one of long stand-case. ing, and, by a careful inspection of its lines, it would have been brought to its notice. By city ordinance 806, council series, the legal The deceased, Clements, was lawfully on the duty of the defendant is specified. Section 8 gallery roof. He was engaged in a service of the ordinance provides "that all splices or that necessarily required him to run the risk of joints, wherever the same may occur, shall be coming in contact with defendant's wires, thoroughly soldered, after such joint or splice either by stepping over them or going under is made, and, in addition thereto, shall be well them. It is probable that the latter mode was and thoroughly wrapped with kerite tape or the most convenient, and there is no evidence other insulating material, so as to produce per- that in so doing he incurred any greater risk. fect insulation at such joint or splice." This The wires were visible, and to all appearances ordinance was a contract with each and every were safe. The great force that was being carinhabitant of the city. The defendant's stand-ried over the wire gave no evidence of its ard of duty was fixed by it, and it is the same existence. There was no means for a man under all circumstances, and its omission is neg- of ordinary education to distinguish whether lect. The first requirements of the plaintiffs the wire was dead or alive. It had all was to show the existence of this duty which they alleged had not been performed, and, having shown this, they must show a failure to perform the duty, and thus establish negligence on the part of the defendant. It is an affirma. tive fact, the presumption being, until the contrary appears, that every person will perform the duty enjoined by law or imposed by contract. Cooley, Torts, 659, 661. In many cases evidence of the injury done makes out a prima facie case; for instance, where a bailee returns in an injured condition an article which has been loaned to him, or where a passenger on a railway train is injured without fault on his part. The city ordinance does not specify at what particular localities splices shall be perfectly insulated. On all parts of the line of defendant company where they occur the duty is specified. The wire of defendant was spliced, and was not insulated, as required by the ordinance. It passed over a roof, to which people in adjoining rooms had access, and where, in the course of time, mechanics must go to make repairs, or laborers to sweep off or clean the roof. It was the duty of the company, independent of any statutory regulation, to see that its lines were safe for those who by their occupations were brought in close

the appearance of having been properly insulated. From this fact there was an invitation or inducement held out to Clements to risk the consequence of contact. He had a right to believe they were safe, and that the company had complied with its duties specified by law. He was required to look for patent and not latent defects. Had he known of the defective insulation, and put himself in contact with the wire, he would have assumed the risk. The defect was hidden, and the insulation wrapping was defective. It is certain, had it been properly wrapped, Clements would not have been killed. His death is conclusive proof of the defect of the insulation and the negligence of defendant. He exercised reasonable care in going under the wire in the performance of his duty, as he had a right to believe, from external appearances, that the wire was safe. His action was such as not to tend to expose himself directly to the danger which resulted in the injury. In fact, there was no apparent danger.

But it is urged that Clements was cautioned to keep away from the wires by his employer, Brady, and his failure to do so was gross carelessness on his part. The evidence on this point is as follows: 'Question. Did you

swer.

fixed, were guaranties that the defendant company had done its duty. These appearances assured him that, in the performance of his work in sweeping the roof, it was not dangerous for him to risk going over or under the wire. Bomar v. Louisiana N. & S. R. Co. 42 La. Ann. 983. Even in the presence of a known danger, to constitute contributory negligence it must be shown that the plaintiff voluntarily and unnecessarily exposed himself to it, unless it is of that character that the plaintiff must assume the risk from the very nature of the danger to which he is exposed. From the appearances of the wire, its wrapping with insulated tape, and the known duty of the defendant to protect the insulation at this particular splice or joint, Clements had no reason to anticipate danger, except from the fault of the defendant company. This fault was the cause of his death, and his act in passing under or over the wire was too remote to give it the character of contributory negligence.

call Clements' attention to the wires? An- | duty to which Clements' attention could be No, sir; I cautioned him to be careful of the wires. Every man who goes over a roof must keep away from the wires. Q. It is the business of a man who goes over a roof to keep away from them? A. Yes, sir. Q. Did he understand that business? A. Yes, sir. Q. Did you caution him that morning to keep away from the wires? A. Yes, sir." Clem ents' attention was not directed to any particular danger from the wires. No apparent de fect was pointed out to him. The admonition to him was only of a danger which he knew to exist, according to the statement of Brady, before he advised him to be cautious of going near the wires, or to keep away from them. There was only that instinctive dread of danger which overtakes one when he approaches a railroad track. The track in itself is not dangerous, and is only made so by the passage of a train of cars over it. They announce their approach, and hence a person, before he attempts to cross the track, must exercise great caution, stop and listen, and look up and down the track. Having done this, if a train approaches silently, without the accustomed signal, and injures him, he would be entitled to recover damages for the injury. Curley v. Illinois Cent. R. Co. 40 La. Ann. 817; Brown v. Texas & P. R. Co. 42 La. Ann. 350. The electric wires gave no signal of danger. Listening would not have revealed any danger. It is hidden and silent. But they are disarmed of danger if properly insulated. By The next inquiry is, What have the plainlooking, one can see if there are evidences of tiffs suffered pecuniarily by the death of their insulation. If there are evidences of it, and son in the loss to them of his contributions to no defects are visible after careful inspection, their support? The evidence does not show one whose employment brings him in close that the plaintiffs were dependent for their proximity to the wire, and which he has to support upon his earnings, which were not pass, either over or under it, is not guilty of con- very large, varying from $1.50 to $2.50 per tributory negligence by coming in contact day. The parents, although their domestic with it, unless he does it unnecessarily, and relations were pleasant, lived apart, each with without proper precautions for his safety. It a child. The deceased's father says that when cannot be said that when Clements went on to he wanted anything he asked him for it, and the roof to repair it he went into the presence he, if he had it, willingly gave it. From the of known danger, and assumed the hazards of facts as to the amount contributed by the dethe employment. The employment was not ceased to the support of his parents, we condangerous. The wires, if properly insulated, clude that the verdict of the jury awarding $5,as above stated, would have been harmless. 000 damages is excessive. Two thousand dolIt was only a remote danger which he had to lars, we think, would be a most liberal award. risk, and this depending upon the fact whether The judgment appealed from is amended, so or not the defendant company had done its as to fix the amount of the damages for plainduty as specified by law. The external aptiffs at $2,000, and in other respects it is afpearances, the only indications of performed firmed; appellees to pay costs of appeal.

This suit was brought under the provisions of Act 71, of 1884, amending article 2315, Civil Code. The plaintiff, therefore, can only claim such damages as the deceased, Clements, could have done had he survived the injury. These would have been for mental and physical suffering and actual pecuniary loss. The deceased was almost instantly killed, and no damage can be awarded for suffering.

containing an acknowledgment of re- | assignors, at the time of the execution of the ceipt of consideration will not estop a mar- note and of its assignment, had knowledge ried woman from showing that she gave the note as surety and therefore against the prohibition

cases in which a married woman has been estopped from claiming the protection of the statute are cases where some statement, affidavit or representation has been made by the party to be estopped, which have been in good faith relied upon by the other contracting party, so that to permit her to show the truth would be to assist in the perpetration of a fraud. The cases of Ward v. Berkshire L. Ins. Co. 108 Ind. 301, 6 West. Rep. 596; Rogers v. Union Cent. L. Ins. Co. 111 Ind. 343, 9 West. Rep. 828; Lane v. Schlemmer, 114 Ind. 296, 12 West. Rep. 922,-are of this character. In Cupp v. Campbell, supra, and Lane v. Schlemmer it was held that a married woman is not estopped by the mere form of the contract which she has no power to make. In this case there was no statement or representation of any kind to indicate that the appellant was the principal in the note and received the consideration, except the form of the contract. This, we are satisfied, was not sufficient to constitute an estoppel to prevent her from showing who received the consideration and who did not. To hold otherwise would be to nullify the statute, and look to the form rather than to the substance of the transaction. This was well expressed by McBride, J., in the late case of Cummings v. Martin, 128 Ind. 20, in these words: "It cannot be doubted that one of the principal reasons for the enactment of the statute forbidding married women to enter into any contracts of suretyship, and making such contracts void as to them, was to prevent them from squandering or incumbering their property as sureties for impoverished husbands. The courts have rightfully shown a disposition to scan closely contracts where there was reason to suspect that the transaction, while in form a contract, with the wife as principal, was in fact an attempted evasion of the statute, the consideration moving solely to the husband. Where this has been found to be true, it has uniformly been held that the contract is within the inhibition of the statute, and is void as to the wife."

doctrine of the courts and text-writers that a | against the exercise of a personal right. The note executed in violation of a statute is void, even in the hands of an innocent purchaser for value. In Tiedeman, Com. Paper, § 178, it is said: "But where the statute making the consideration illegal declares a contract founded on such a consideration to be absolutely void, the language of the statute must be given its proper effect, and so the courts have held that the commercial paper founded on such considerations is void, even in the hands of bona fide holders." In Vallett v. Parker, 6 Wend. 615, it is said: "Whenever the statutes declare notes void, they are and must be so in the hands of every holder; but where they are adjudged by the court to be so, for failure of or the illegality of the consideration, they are void only in the bands of the original parties, or those who are chargeable with, or have had notice of, the consideration." In 2 Randolph, Com. Paper, the law is laid down in these words: Sec. 517. All contracts which violate the provisions of the statute law, either expressly or by implication, are void. And this is true although the prohibition of the statute be not expressed, but must be implied from its nature and objects. Where a statute expressly declares the contract which forms the consideration of the note or bill to be void, the note or bill is illegal and void, even in the hands of a bona fide holder for value. So, where the Legislature has prohibited a transaction, a bill or note given for it is void." See also Sondheim v. Gilbert, 117 Ind. 71; Spray v. Burk, 123 Ind. 565. The statute says that "a married woman shall not enter into any contract of suretyship," and follows this prohibition with the express declaration that any "such contract as to her shall be void." Stronger language could not have been chosen in which to express the legislative intent to prohibit the making of such contracts, and to declare that the consequence of a violation of the statute should be to declare the instrument void. The presumption is that the word "void" was understandingly used by the law-makers, and this presumption is strengthened by the fact that the term correctly expresses the status of contracts executed in violation of statute, as established by the overwhelming weight of authority. The statute was enacted to shield and protect married women from contracts from which neither they nor their estates could be benefited, and such contracts were therefore to be void as to them. We have therefore held that they alone can invoke the benefit afforded by the prohibition. Plaut v. Storey (Ind.) (this term); Johnson v. Jouchert, 124 Ind. 105, 8 L. R. A. 795. We see no reason why, when they have elected to claim the benfit of the Act, the words of the statute shall not be given the same force and effect that would have obtained if the words "as to her" had been omitted. While the statute makes the contract of suretyship void as to a married woman, she alone can claim the benefit of the statute, and being, under our statute, bound by an estoppel in pais like any other person, it follows logically that she may in some cases be estopped by her conduct or representations from claiming the benefit of the statute. This is not an affirmance or ratification of a void contract, but an estoppel

Judgment reversed, with instructions to restate the conclusion of law in accordance with this opinion, and to render judgment for the appellant, Lottie A. Voreis.

McBride, J., dissenting:

The note in this case was payable at a bank in this state. It was therefore upon its face commercial paper, governed by the law-merchant. It was transferred before due to one who took it in good faith, in the ordinary course of business, and paid full value for it. The only fact shown by the record which is relied upon to invalidate it in the hands of the indorsee is that he knew the maker was a married woman, and that, although upon its face it purported to be what the indorsee in good faith supposed it was, her individual contract, it was in fact a contract of suretyship. The court expressly finds that the indorsee had knowledge of this latter fact. The rule by which the innocent indorsee of commercial paper is protected against alleged illegality in its consideration is stated by eminent authority as follows: "The bona fide holder for value,